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Lodi Unified School District opens a constitutional can of worms

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Posted: Thursday, August 8, 2013 12:00 am

Officials of the Lodi Unified School District may have walked into another hornet’s nest of constitutional controversy. Could their latest “social networking” policy now lead to expensive litigation?

One school official said, “I think it (the policy) was made with good intentions.”

Unfortunately, we are all familiar with the axiom that describes where “good intentions” eventually lead.

The most famous Supreme Court holding regarding student free speech is taught in every law school: Tinker v. Des Moines Independent School District (1969).

The case was about school authorities adopting a policy that banned student armbands. Kids were protesting American military operations in Vietnam. The policy required suspension from school until the youth in question returned without the supposedly offensive symbol.

Justice Fortas delivered the majority opinion. In part, this is what he had to say:

“It can hardly be argued that either teachers or students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate ... Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of school authorities ... Our problem involves direct, primary First Amendment rights akin to ‘pure speech.’”

Justice Fortas continued: “In order for the state in the person of school officials to justify prohibition of a particular expression or opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint.”

Another Supreme Court case, Bethel School District No. 403 v. Fraser (1986), involved a student who made an assembly speech that was perceived as being “lewd” by school officials. This time, the Court seemed to narrow the definition of free speech in a public school setting.

Chief Justice Burger delivered the opinion of the Court. In part, he states: “But these fundamental values (free speech) ... must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”

Obviously, the Supreme Court cases summarized here — among others — were decided well before social media was on the scene. This is still a contentious area that remains open to review by future judicial holdings.

A real problem for LUSD is that most of their social media activity policy appears to be quite vulnerable and subject to capricious interpretation. Their scope of jurisdiction remains an issue as well.

But what if a student signs a “policy” contract and agrees to forfeit free speech rights? Should any student be required to sign away First Amendment rights in order to participate in a public school-sponsored activity? Also, is a “contract” really a legally binding document for any student before the age of majority?

The points of summation here are simply this: Do the Lodi Unified School District and other local school agencies really want to continue with controversial policies that will almost assuredly raise First Amendment issues in a court of law? Are these officials willing to potentially spend hundreds of thousands of dollars in legal fees for possible litigation that could result in student civil rights violations?

Of course, the issue of media free speech is far more complicated that what I have described here, and this column is not meant to be construed as legal advice. No one should act or rely on the information or opinion expressed herein without the advice of an attorney.

But perhaps Peter Scheer, executive director of the California First Amendment Coalition, expressed it best as reported in the Lodi News Sentinel. To paraphrase: It makes more sense for school administrators to notify the students’ parents of inappropriate media content and let them take action.

After all — and with little controversy — who really holds the purse strings and legal authority over these technological social media devices used by kids?

Steve Hansen is a Lodi writer.

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1 comment:

  • Joanne Bobin posted at 10:00 am on Thu, Aug 8, 2013.

    Joanne Bobin Posts: 4488

    I certainly don't claim to know the law, but since this policy (from what I've read) only applies to members of clubs and athletic teams, it seems to be basically discriminatory.

    Unless it is applied across the board, it is not a valid policy.

    Imagine if an employer instituted a policy of this sort that only applied to a certain class of employees, i.e., only for hourly employees and not for salaried employees. I doubt it would stand for long.


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